Ex Parte Solyntjes et alDownload PDFPatent Trial and Appeal BoardApr 28, 201410750077 (P.T.A.B. Apr. 28, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALAN J. SOLYNTJES, FLOYD L. FOSLIEN, and BENJAMIN A. JOHNSON ___________ Appeal 2013-003637 Application 10/750,077 Technology Center 3700 ____________ Before KARL D. EASTHOM, ERIC B. CHEN, and JENNIFER L. MCKEOWN, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2013-003637 Application 10/750,077 2 This is an appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1-27, all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ invention relates to a personal respiratory protection device having a bayonet attachment system with connection that is incapable of being inadvertently removed or separated. (Abstract.) Claim 1 is exemplary, with disputed limitations in italics: 1. A personal respiratory protection device that comprises: (a) a mask body that is adapted to fit at least over a person’s nose and mouth; (b) at least one fluid communication component located in fluid communication with the mask body so that a non-contaminated source of oxygen can be supplied to a wearer of the personal respiratory protection device; (c) at least one non-contaminated breathing gas supply source component; and (d) at least one bayonet attachment system that enables the breathing gas supply source component to be fluidically communicatively secured to the fluid communication component, the bayonet attachment system comprising a first portion and a second portion, wherein when the first portion is attached to the second portion a connection is created that is incapable of being inadvertently separated. Claims 1-24 stand rejected under 35 U.S.C. § 112, first paragraph as failing to comply with the written description requirement.1 1 The Examiner inadvertently included claims 25-27 in the statement of the rejection. Claims 25-27 do not recite the limitation “incapable of being inadvertently separated.” Appeal 2013-003637 Application 10/750,077 3 Claims 1-14 and 17-27 stand rejected under 35 U.S.C. 103(a) as obvious over Metzger (US 5,732,695; Mar. 31, 1998) and Dumortier (US 4,364,689; Dec. 21, 1982). Claims 1-3, 7, 8, 10-16, 18-20, 23, and 24 stand rejected under 35 U.S.C. 103(a) as obvious over Metzger and Del Rio (US 5,741,084; Apr. 21, 1998). Appellants relied upon the following2 in rebuttal to the Examiner’s rejection: Declaration under 37 C.F.R. § 1.132 of Alan J. Solyntjes, dated September 13, 2011 (“Solyntjes Declaration”). ANALYSIS § 112, First Paragraph, Rejection With respect to independent claim 1, we are persuaded by Appellants’ arguments (Reply Br. 2-3) that the claim limitation “incapable of being inadvertently separated” complies with the written description requirement under 35 U.S.C. § 112, first paragraph. The Examiner found that claims 1-24 “contain[] subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor(s), at the time the application was filed, had possession of the claimed invention.” (Ans. 4.) In particular, the Examiner found that “[b]y deletion of the term ‘or input’ in the amendment to the specification . . . the term ‘key’ as used in the claims 2 This opinion only addresses arguments made by Appellants. Arguments not made are considered waived. See 37 C.F.R. § 41.37(c)(1)(vii). We have considered the declaration evidence to the extent raised by Appellants’ arguments. Appeal 2013-003637 Application 10/750,077 4 and needed to define ‘incapable of being inadvertently separated’ in the independent claims has a different structural meaning” and this amendment “makes it unclear that the appellant had contemplated what the invention was at the time of filing, had possession of the invention, or understood what exactly the invention was.” (Id.) We do not agree. Appellants’ Specification discloses that the limitation “‘incapable of being inadvertently . . . separated’ means that the first and second portions are permanently joined or can be only separated through use of a key that unlocks the first and second portions without breaking or destroying either portion . . . .” (Spec. 4:21-24 (emphasis added).) Thus, Appellants’ amendment to Specification narrows the definition of “key” to an “implement, device, or element,” rather than an “implement, device, element, or input.” (Spec. 4:26-27 (amended November 4, 2011).) Accordingly, the claim 1 limitation “incapable of being inadvertently separated” has been narrowed because the “key” has been redefined as “an implement, device, or element,” rather than “an implement, device, element, or input,” as in the originally-filed Specification. Accordingly, we are persuaded by Appellants’ argument that “[t]he amendment removes the words ‘or input’ such that the specification would define a ‘key’ as an ‘implement, device, or element that functions, as intended, for unlocking the first and second portions of the bayonet attachment system’” and “[t]his language is explicitly supported by the originally filed application . . . and does not broaden the scope of the claimed subject matter beyond what was originally disclosed.” (Reply Br. 2.) Appeal 2013-003637 Application 10/750,077 5 Thus, we disagree with the Examiner that the Specification does not provide written description support for “incapable of being inadvertently separated.” Accordingly, we do not sustain the rejection of independent claim 1 under 35 U.S.C. § 112, first paragraph. Claims 2-19 depend from claim 1. We do not sustain the rejection of claims 2-19 under 35 U.S.C. § 112, first paragraph for the same reasons discussed with respect to independent claim 1. Independent claims 20 and 23 recite limitations similar to those discussed with respect to independent claim 1. We do not sustain the rejection of claims 20 and 23, as well as dependent claims 21, 22, and 24 for the reasons discussed with respect to claim 1. Claim Interpretation The Examiner interpreted the claim limitation “incapable of being inadvertently separated” as encompassing separation through use of a user’s fingers to unlock the first and second portions without breaking or destroying either portion. (Ans. 10.) In particular, the Examiner articulated that “when expressly disclosing the structure of the key, appellant discloses various structures from screwdrivers/picks to specially designed tools to the key being ‘preferred that a user not merely [use] their fingers or teeth to unlock the connection’” and accordingly, “there is nothing in the specification making it clear that a user’s finger does not read on the term key.” (Id. (bracketing in original).) Alternatively, the Examiner states that “a finger can be considered an ‘element’ of a body.” (Id.) Under the Appeal 2013-003637 Application 10/750,077 6 broadest reasonable interpretation consistent with the Specification, we agree with the Examiner. Appellants’ Specification discloses that the limitation “‘incapable of being inadvertently . . . separated’ means that the first and second portions are permanently joined or can be only separated through use of a key that unlocks the first and second portions without breaking or destroying either portion . . . .” (Spec. 4:21-24.) Appellants’ amended Specification also states that “‘key’ means implement, device, or element.” (Spec. 4:26-27 (amended November 4, 2011).) Furthermore, Appellants’ Specification states “[i]t is preferred that a user not merely using their fingers or teeth to unlock the connection.” (Spec. 19:24-25 (emphasis added).) Accordingly, in a non-preferred embodiment, users can use their fingers to unlock the first and second portions. Thus, reading the claim limitation “incapable of being inadvertently removed or separated” in the context of the entire Specification, we agree with the Examiner that this limitation would encompass the use of fingers to unlock the first and second portions. § 103 Rejection – Metzger and Dumortier We are unpersuaded by Appellants’ arguments (App. Br. 6-9; see also Reply Br. 4-8) that the combination of Metzger and Dumortier would not have rendered obvious independent claim 1, which includes the limitation “wherein when the first portion is attached to the second portion a connection is created that is incapable of being inadvertently separated.” The Examiner acknowledged that Metzger does not disclose the limitation “wherein when the first portion is attached to the second portion a Appeal 2013-003637 Application 10/750,077 7 connection is created that is incapable of being inadvertently separated” (Ans. 6) and thus, relied upon Dumortier for teaching a bayonet locking system with a pawl 7 mounted on a pin 8 that locks with a chamber 6 (Ans. 6; Dumortier, figs. 1-4, 7, and 8). The Examiner concluded that “it would have been obvious . . . to provide the bayonet attachment system of Metzger with a locking means as taught by Dumortier in order to prevent the release or unlocking of the connection by accident or inadvertence.” (Ans. 6.) We agree with the Examiner. Metzger relates to “a detachable filtration device for use with a respirator . . . .” (Col. 1, ll. 5-6.) A respirator 12 includes a face mask 14 which covers a user’s nose and mouth (col. 3, ll. 39-40; fig. 1) and which carries two detachable filtration devices 10 (col. 3, ll. 35-39; fig. 1). The filtration device 10 includes an inner breather tube 42 for attachment to the respirator 12. (Col. 4, ll. 9-11; fig. 1.) The face mask 14 includes two inlet ports 24 (col. 3, ll. 57-58) with each inlet port 24 having an opening formed by a rigid tubular port wall 26 (col. 3, ll. 59-61). The inner breather tube 42 is detachably secured to the port wall 26 via a bayonet type fitting. (Col. 5, ll. 51-53.) Dumortier relates to a manhole cover assembly (col. 1, ll. 5-6) with a bayonet connection to secure a manhole cover to a surrounding ring (col. 2, ll. 9-12). The manhole cover assembly includes a ring 2 having a flange 11 for seating a cover 3. (Col. 3, ll. 61-66; fig. 1.) The ring 2 includes at least one chamber 6 (col. 3, ll. 67-68; fig. 1) corresponding to fingers 4 formed on the cover 3 (col. 3, 1. 68 to col. 4, 1. 2; fig. 2). The chamber 6 includes a window 6’ and a gap 5’ that is overhung by a beak 5. (Col. 4, 11. 6-9; fig. 1.) When the cover 3 is dropped into place, the finger 4 passes through Appeal 2013-003637 Application 10/750,077 8 the gap 5’ into the window 6’ (col. 4, 11. 10-11) and upon rotation of the cover 3, the finger 4 swings beneath the beak 5 (i.e., a bayonet connection) (col. 4, ll. 13-16). The finger 4 functions as a locking device and includes a pawl 7 mounted on a horizontal cylindrical pin 8. (Col. 4, ll. 17-23; figs. 2- 4.) When the pawl 7 is in its upright position, the fingers 4 are aligned with the windows 6’ (fig. 7), allowing the cover 3 to be dropped into place (col. 4, ll. 60-62). After the cover 3 is rotated (col. 4, ll. 63-66), the pawl 7 is pivoted clockwise (col. 4, ll. 67-68; fig. 7) into a locking position (col. 3, ll. 41-42; fig. 8) to prevent accidental displacement of the cover 3 (col. 5, ll. 3-5) due to pivoting of the cover 3 from passing traffic (see col. 1, ll. 41- 45). A key 44 (col. 6, 1. 18; fig. 13) can be used to lift the pawl 7 upward (col. 6, ll. 24-31; fig. 14). A person of ordinary skill in the art would have recognized that incorporating the locking device of Dumortier for a bayonet connection with the filtration device 10 of Metzger would provide the benefit of preventing accidental pivoting of the bayonet type fitting for the filtration device 10 and the face mask 14. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007). Thus, we agree with the Examiner (Ans. 6) that modifying Metzger to include the locking device of Dumortier would have been obvious. First, Appellants argue that [t]he present application defines “incapable of being inadvertently removed or separated” to mean that the “first and second portions are permanently joined or can only be separated through use of a key that unlocks the first and second portions without breaking either portion,” and defines key as an “implement, device, or element that functions, as intended, for unlocking the first and second portions of the bayonet system.” Appeal 2013-003637 Application 10/750,077 9 (App. Br. 6; see also Reply Br. 4-5.) Accordingly, Appellants argue, “[t]he connection described by Dumortier, however, can be separated non- destroyingly without the use of a key” because “[t]he manhole cover of Dumortier appears to be removable by hand . . . .” (App. Br. 6; see also Reply Br. 5.) However, as discussed previously, the limitation “incapable of being inadvertently separated” is broad enough to encompass the use of fingers (or hands). Second, Appellants argue that “the Examiner has provided no reason why one of skill in the art would consider modification of the manhole cover assembly of Dumortier to include a connection that is incapable of being inadvertently separated, or to subsequently modify the respirator device of Metzger to include such a connection.” (App. Br. 6-7; see also Reply Br. 5.) However, as discussed previously, the combination of Metzger and Dumortier is based on the improvement of a similar device in the same way as in the prior art. Third, Appellants argue that “Dumortier provides no indication that the connection would provide a locking function in other orientations in which gravity is not acting to maintain pawl 7 in a locked position” and point to paragraph 6 of the Solyntjes Declaration “where it is explained that the manhole cover of Dumortier is used in a horizontal orientation and would not function in the same manner if incorporated into a personal respiratory protection device used in many different orientations.” (App. Br. 8; see also Reply Br. 7.) However, the statements in the Solyntjes Declaration relied upon by Appellants lack persuasive factual support because the Solyntjes Declaration does not cite to any corroborating evidence. See In re Beattie, 974 F.2d 1309, 1313 (Fed. Cir. 1992) Appeal 2013-003637 Application 10/750,077 10 (“[D]eclarations themselves offer only opinion evidence which has little value without factual support.”). The Examiner finds nothing in Dumortier “discussing the need for gravity to keep the device locked and appellant has cited nothing in Dumortier supporting this assertion.” (Ans. 12.) The Examiner also points out that Durmortier implies a “slight friction fit,” and that skilled artisans would have modified the face mask of Metzger to prevent inadvertent separation by mere gravity forces overcoming frictional forces. See id. In the Solyntjes Declaration, there is no engineering analysis that the pawl 7 of Dumortier would overcome the frictional forces between the pin 8 and the walls of the chamber 6, such that the pawl 7 would move from a locked position (fig. 8) to an unlocked position (fig. 7) if the entire structure were inverted. Thus, we agree with the Examiner that the combination of Metzger and Dumortier would have rendered obvious independent claim 1, which includes the limitation “wherein when the first portion is attached to the second portion a connection is created that is incapable of being inadvertently separated.” Accordingly, we sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a). Claims 2-14 and 17-19 depend from claim 1 and Appellants have not presented any further arguments with respect to these claims. Therefore, we sustain the rejection of claims 2-14 and 17-19 under 35 U.S.C. § 103(a) for the reasons discussed with respect to claim 1. Independent claims 20, 23, and 25 recite limitations similar to those discussed with respect to independent claim 1. We sustain the rejection of claims 20, 23, and 25, as well as dependent claims 21, 22, 24, 26, and 27, for the reasons discussed with respect to claim 1. Appeal 2013-003637 Application 10/750,077 11 § 103 Rejection – Metzger and Del Rio We are unpersuaded by Appellants’ arguments (App. Br. 10-11; see also Reply Br. 9-10) that the combination of Metzger and Del Rio would not have rendered obvious independent claim 1, which includes the limitation “wherein when the first portion is attached to the second portion a connection is created that is incapable of being inadvertently separated.” The Examiner found that the bayonet connection of Del Rio that connects a tubular extension 20 to a longitudinal aperture 18, such that pins 22 and 24 are retained in L-shaped channels 36 with spring arms 43, corresponds to the limitation “wherein when the first portion is attached to the second portion a connection is created that is incapable of being inadvertently separated.” (Ans. 8; Del Rio, fig. 6.) Del Rio describes a bayonet connector assembly (col. 3, l. 23) for releasably attaching a variety of different tool bits to a motor driven surgical instrument (col. 1, ll. 8-11). A surgical instrument 10 includes a motor housing 12 and a removable nose piece 14 with a longitudinal aperture 18. (Col. 3, ll. 13-17; fig. 1.) The motor housing 12 includes a tubular extension 20 and is attached to the nose piece 14 using a bayonet connector. (Col. 3, ll. 22-26.) The tubular extension 20 includes two diametrically opposed pins 22 and 24. (Col. 3, ll. 27-29.) A pair of cylindrical sleeves 31 and 32 are placed in the aperture 18 (col. 3, ll. 37-38) with the sleeve 32 having a pair of L-shaped channels 36 (col. 3, ll. 45-46, 51-52) to receive the pins 22 and 24 (col. 3, ll. 49-50). The sleeve 31 also includes a pair of cantilevered arcuate spring arms 43 (col. 4, ll. 22-23) to retain the pins 22 and 24 in the channels 36 (col. 5, ll. 29-32; figs. 3-6) to securely attach the motor housing 12 to the nose piece 14 (see col. 1, ll. 56-58). Del Rio Appeal 2013-003637 Application 10/750,077 12 explains that “[w]hen one attaches a nose piece 14 to a motor housing 12 for use by a surgeon, the joint is brought together and upon final positioning, [and] it is bent to see if there is any movement between the nose piece 14 and motor housing 12.” (Col. 5, ll. 60-63.) Furthermore, to separate the nose piece 14 from the motor housing 12, a surgeon’s fingers would be used to release the pins 22 and 24 from the spring arms 43. (See id.) Thus, Del Rio teaches the limitation “wherein when the first portion is attached to the second portion a connection is created that is incapable of being inadvertently separated.” Appellants argue that “Del Rio et al. does not describe or suggest such a ‘key,’ and does not describe or suggest a connection that is ‘incapable of being inadvertently removed’ or ‘separated’” and “[a]lthough a force applied to the spring arms 43 may be necessary to release pins 22 and 24, a force applied by a user, cannot logically be said to suggest a ‘key’ in the form of an ‘implement, device, or element.’” (App. Br. 11; see also Reply Br. 9-10.) Again, the limitation “incapable of being inadvertently separated” is broad enough to encompass the use of fingers (or hands). Further, because a surgeon’s fingers can be used, a small implement (i.e., a “key”) held in the fingers also could be used. Thus, we agree with the Examiner that the combination of Metzger and Del Rio would have rendered obvious independent claim 1, which includes the limitation “wherein when the first portion is attached to the second portion a connection is created that is incapable of being inadvertently separated.” Accordingly, we sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a). Claims 2, 3, 7, 8, 10-16, 18, and 19 depend from claim 1 Appeal 2013-003637 Application 10/750,077 13 and Appellants have not presented any further arguments with respect to these claims. Therefore, we sustain the rejection of these claims under 35 U.S.C. § 103(a) for the reasons discussed with respect to claim 1. Independent claims 20 and 23 recite limitations similar to those discussed with respect to independent claim 1. We sustain the rejection of claims 20 and 23, as well as dependent claim 24, for the reasons discussed with respect to claim 1. DECISION The Examiner’s decision to reject claims 1-27 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED tj Copy with citationCopy as parenthetical citation